Yesterday, speaking at the Environmental Law Institute, Judge David S. Tatel of the U.S. Court of Appeals for the District of Columbia Circuit reminded federal agencies that they need to follow the law when writing regulations. BNA news service (subscription) recorded some of the comments:

"In both Republican and Democratic administrations, I have too often seen agencies failing to display the kind of careful and lawyerly attention one would expect from those required to obey federal statutes and to follow principles of administrative law,” Tatel said. “In such cases, it looks for all the world like agencies choose their policy first, then later seek to defend its legality.”

He then emphatically added: “That gets it entirely backwards.” 

The Environmental Protection Agency has been a repeat offender. Tatel, appointed by President Clinton, singled out several Bush administration decisions, including the refusal to consider greenhouse gases a pollutant eligible for regulation under the Clean Air Act (later overturned by the Supreme Court) and a permit allowing more pollution to be dumped into the Anacostia River, which runs through Washington, DC. Tatel’s court overruled EPA’s decision to grant the permit.

Tatel’s comments are Regulation 101. Congress writes the nation’s laws, and the Executive Branch enforces them. Of course, laws passed by Congress can be overly broad, ambiguous, or downright confusing. In those cases, Executive Branch agencies have the power of interpretation and advance policies they believe embrace the spirit of the law.

Unfortunately, sometimes that power is abused. Agencies will choose to exercise discretion in circumstances where discretion is not needed – circumstances where the law is crystal clear.

We have yet to see a blatant case of such abuse by the Obama administration. According to BNA, Judge Tatel notes, “It's at times like these, when a new administration is determined to change the environmental policy, that our commitment to the fundamental principles of administrative law is really tested.”